Litigation in the early years of the Canterbury settlement 1852-1861. Jeremy Finn Associate Professor of Law University of Canterbury. Author’s Note This paper was presented at the Australian Social Sciences Association workshop on Litigation, Adelaide, 2001. A revised version was later published as: Jeremy Finn, “Litigation in the early years of the Canterbury Settlement” in W Prest and S Roche Anleu (eds) Litigation Past and Present ( Sydney UNSW Press 2004) pp59 -74 1. Introduction This paper looks at the frequency and nature of litigation in the early years of the Canterbury settlement on the east coast of the South island of New Zealand. Because this was a new settlement in an area with virtually no pre- existing European population (and few indigenous people), but was a part of a more developed colony with an existing institutional base of courts and of inherited and local law, it provides an unusual opportunity to obtain a picture of litigation in a new community which inherited, rather than developed, its legal institutions. This paper focuses on civil litigation in the Supreme Court of New Zealand, the superior court of record, and is based primarily on archival records available in Christchurch, particularly the Supreme Court Minute Book, supplemented by other archival material and by contemporary newspaper reports. The termination date of the study, around the end of September 1861, is dictated by changes in the recording of matters before the Supreme Court, under which very many fewer details are entered into the Minute Book. I must begin with a caveat that this paper does not attempt at all to deal with all cases before the courts in Canterbury – there is clearly a substantial body of disputes which were heard in the lower courts which fall outside the purview of this study; I have not looked at these, partly because it would extend this paper substantially; partly because of pressure of time, and partly because the documentary record is patchy enough to raise some doubts as to the possibility of ever establishing a sufficiently accurate picture. 2. The context 2.1 History and Geography Canterbury was unusual in that it was a planned settlement principally conceived and executed by private, rather than governmental, enterprise. The story is all the standard books, but may be sketched sufficiently here by saying that Canterbury was planned by its designers, the Canterbury Association, as a Wakefield-plan settlement, and at the same time an 1 Anglican colony. The planners therefore intended a version of an idealised rural England, with the Association acquiring cheaply a very large area of land, which it would sell off gradually, but at a “sufficient” price (in practice a substantial price), to capitalists who would thus providing the initial funds for the settlement’s development, while hardworking labourers would be kept to wage work by the relatively higher price of land, at least for some time – and then they could transmute themselves into a rural yeomanry who could further aspire to progress by exploiting the work of further labourers brought out with the assistance of the moneys paid for the dear land. While the system worked as well, or as badly, in Canterbury as it did anywhere else, Wakefieldian theory was frustrated by the dreams of, and opportunities provided by, the pastoral age. Canterbury had, from its initial days, a substantial class of reasonably well-to- do landowners and professionals who came out directly from England to live in the colony, and who often found themselves as landlords of farmers or small businesses, and often also provided loan finance, or other investment capital, for farms or businesses. In addition, and unusually for New Zealand, Canterbury had a significant number of “absentee” landlords – mostly the English based members of the Canterbury Association who had acquired land in the settlement in return for providing initial capital; some of these absentee landlords1 found litigation in the Supreme Court necessary to protect their interests. The physical conditions of the Canterbury provided reasonably good conditions for the planned new settlement. Most of the Canterbury area was flat or only gently rolling country; much of it in open tussock grassland, interspersed with large patches of native “bush” or forest. Soils ranged form stony gravels to deep loans suitable for intensive agriculture; the drier tussock lands held out early promise for sheep farming. There was however a major problem with communications, in that only two good harbours served the settlement; Lyttleton (at one time Port Cooper) and Akaroa; both being these being separated from the broad plains by steep hillsides, then largely forest covered. Travellers had initially only two options for travel from Lyttelton, for much of the period of this study the largest centre of the settlement for many years, to Christchurch, the intended principal settlement of Canterbury, and soon to become its dominant centre. There was a narrow winding track over a steep hill (“the Bridle Path”, still a resort of the more determined Sunday walkers), or to go by water around the coast and over a quite significant tidal bar at the mouth of the Avon river, which flowed through Christchurch. After a few years this was supplemented by a road over the hills, but until a rail tunnel was driven through between the centres in the late 1860s, transport was always difficult. Nor were communications much better over much of the Canterbury Plains, and the adjoining foothills, over which sheep farmers quickly spread, as the plains and foothills were streaked with rivers which, 1 See for example Scott as attorney for Rt Hon William Drago Montague, Duke of Manchester v Fantham 25 May 1860 National Archioves of New Zealand, Christchurch branch (hereafter NZNA) CAHX CH53/22B Minute Book Supreme Court 1860-61 and Wortley v Williams 5 July 1861 NZNA CAHX CH53/22B Minute Book Supreme Court 1860-61 2 although normally shallow, could rise in flood quickly and become impassable for days. There appears to have been a fairly consistent pattern of smaller farmers taking up land close to Christchurch – partly from a desire to supply the small town market where possible, partly because the richer and better-watered soils were principally closer to Christchurch. One other feature of the Canterbury area was undoubtedly attractive to the Canterbury Association and to colonists alike – Canterbury had only a very small indigenous population at the time of European settlement as the local iwi, Ngai Tahu, had been largely destroyed or driven out by raids from the north. As a result, the Canterbury pioneers could virtually ignore the Maori population and its interests, save in regard to three or four small communities. 2.2. Development of the settlement The arrival of the “First Four Ships” in late 1850 brought several hundred Canterbury Association migrants, overtaking, though not overwhelming, the small European population then existing, mostly in small coastal communities as whalers or felling timber. By the end of 1853, the (settler) population of Canterbury was around 3,000; this rose substantially in 1854-55, slowed over the period 1856-67 and then increased ever more rapidly – initially as a result of further migration organised by the Canterbury Association, but also as a result of the success of the sheep farmers, which drew moneyed settlers from other areas of the colony and even from Australia. A census in 1861 showed a (settler) population2 of 16,040; in the following year the population increased a further 25% . An alternative measure of the development of the settlement is that while there were but three lawyers resident and practising in Lyttelton and Christchurch in 1851, there appear to have been eleven 3by 1857, and a further 13 joined the local profession between 1859 and 1861. 2.3 Legal and institutional context The New Zealand court structure over this period comprised two main institutions, the Resident Magistrate’s Court and the Supreme Court. The former, presided over by a paid, but not legally qualified, magistrate (or rarely, two unpaid Justices of the Peace) had a summary civil jurisdiction in civil cases to a value of £20; it also had a minor criminal jurisdiction, as well as a special role in dealing with cases involving Maori. The Supreme Court was a relatively unusual superior court for the time, in that its civil jurisdiction combined encompassed both equity and the common law; it also dealt with issues as to wills and estates, and also had a supervisory power over lunatics. It was also the principal court for serious criminal matters. One critical circumstance is that the first sittings of the 2 Population data is taken from W J Gardener (ed) A History of Canterbury (Christchurch, Whitcombe & Tombs 1971) vol 2, p 64 and p323. In the years after this study finishes, development of the settlement was significantly affected by the flood of population firstly to the Otago goldfields (to the south of Canterbury) and, a few years later, by gold rushes on the West Coast, across the main mountain ranges 3from Canterbury, but commercially and administratively intertwined. Calculated from data in National Archives of NZ, Christchurch CAHX Ch244/1 Index of Barristers and Solicitors (Christchurch) prior to 1876. 3 Supreme Court in Canterbury were fleeting affairs, conducted at long intervals by a judge on circuit from Wellington. Not until 1858 did Canterbury have a resident Supreme Court Judge, with the appointment of Henry Barnes Gresson, an Irish lawyer formerly in practice in Christchurch. In 1859 the Supreme Court began to sit in Christchurch, rather than Lyttelton. There were other minor courts such as a Court of Requests and a simple Justice of the Peace court, but neither loomed large in Canterbury’s life.